Tersem Singh vs State
2021 Latest Caselaw 16802 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR D.B. Criminal Appeal No. 21/2018

Pankaj

----Appellant Versus State

----Respondent Connected With

D.B. Criminal Appeal (Db) No. 45/2018

Devendra Kumar

----Appellant Versus State

----Respondent D.B. Criminal Appeal (Db) No. 100/2018 Tersem Singh

----Appellant Versus State

----Respondent

For Appellant(s) : Mr. J.S. Choudhary, Senior Advocate assisted by Mr. Pradeep Choudhary Mr. I.R. Choudhary Mr. D.S. Thind Ms. Sapna Vaishnav For Respondent(s) : Mr. Arun Kumar, PP

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE SAMEER JAIN

Order

11/11/2021

(Reportable)

(In D.B. Criminal Appeal No. 100/2018)

Heard learned counsel for the appellant, learned Public

Prosecutor and perused the material available on record.

While opening the arguments on behalf of the accused

appellant Tersem Singh, Shri J.S. Choudhary, learned Senior

(2 of 5) [CRLAD-21/2018]

Counsel assisted by Mr. Pradeep Choudhary pointed out that the

manner in which the trial of the said accused was conducted has

resulted into a sheer failure of justice as no legal assistance was

provided to the accused and his defence has been seriously

prejudiced. He urges that the victim Master 'J' was examined in

this case as PW.2. He gave a statement incriminating the accused-

appellant as being his kidnapper but the counsel, engaged by the

appellant, did not put even a single question by way of cross-

examination to the most important prosecution witness. He urges

that as a matter of fact the counsel, who remained engaged on

behalf of Tersem Singh for some part of the case never conducted

the trial of the accused sincerely or faithfully. In this regard, Shri

Choudhary drew the Court's attention to the statements of PW.1

Pahalwan Singh, PW.3 Praveen Kumar, PW.4 Nanakchand and PW.5

Rajendra Kumar from whom, no cross-examination was conducted

on behalf of the appellant. Referring to the statements of PW.8

Vasu Kapil, PW.9 Ramesh Singh, PW.10 Kailash Chandra, PW.16

Ranjeet Ram and PW.17 Narendra Kumar, Shri Choudhary pointed

out that when these witnesses were examined on oath, the

accused was not even represented by the counsel and he was

given the opportunity to cross-examine the witness on his own. As

per Shri Choudhary, the accused who continues to languish in

custody ever since 20.01.2015, does not have any legal acumen

and thus, he should not have been left helpless to cross-examine

the witnesses. Resultantly, hardly any questions were put to these

witnesses on behalf of the accsued and thus, the defence of the

accused has seriously been prejudiced. Learned counsel Shri

Choudhary submits that no distinct opportunity was provided to

the accused to cross-examine the witnesses PW.16 Ranjeet Ram

(3 of 5) [CRLAD-21/2018]

and PW.17 Shri Narendra Kumar. Shri Choudhary further pointed

out that even when, no counsel was representing the appellant

during a significant part of the trial, the learned trial court did not

appoint an amicus curiae as is mandated by by law and a bald

mention was made in the statements of witnesses that

opportunity to cross-examine was given to the defence counsel.

Shri Choudhary urges that as the appellant was not being

represented at the time when the statements of material

prosecution witnesses and more importantly the Investigating

Officer PW.16 Ranjeet Singh and PW.17 Narendra Kumar were

recorded, manifestly, it can be conclusively deduced that the

accused did not get any opportunity whatsoever to cross-examine

these witnesses. He thus, urges that the matter deserves to be

remanded to the trial court with a direction to recall and provide

an opportunity to the accused appellant to cross-examine the

witnesses PW.1 Pahalwan Singh, PW.2 child victim Master 'J',

PW.16 Shri Ranjeet Ram, IO and PW.17 Shri Narendra Kumar after

providing the services of a free legal aid counsel. In support of this

contention, Shri Choudhary, placed reliance on the judgment

rendered by the High Court of Madras in the case of M. Kannan

vs. State : 2018 CriLJ 116 and urged that the principles of fair

trial have been violated and hence, these witnesses be recalled so

that the effective cross-examination can be conducted from them

on behalf of the accused Tersem Singh.

Learned Public Prosecutor, though formally opposed this

prayer of Shri Choudhary, but he too is also not in a position to

dispute the fact that during entire trial when evidence of the

witnesses was recorded by the trial court, no effective cross-

examination made on behalf of the accused appellant. This fact is

(4 of 5) [CRLAD-21/2018]

reflected from a bare perusal of the statement of child victim

Master 'J' (PW.2) to whom, not even a single question was put in

cross-examination on behalf of the appellant. On perusal of the

statements of the witnesses examined from 29.10.2015 to

19.08.2016, it becomes clear that counsel was not available to

represent the accused in the trial and offer to conduct cross-

examination was given to the accused himself who obviously

would not have been in a position to do so effectively. Providing

legal aid to an accused in custody is the hallmark of the Free Legal

Aid Scheme of the National Legal Services Authority and is also

recognized as a fundamental right as enshrined in Article 22 (1) of

the Constitution of India.

In this background, we are of the firm view that the manner

in which, the trial was conducted by the learned trial court without

providing effective legal aid to the accused has resulted into gross

failure of justice and has seriously prejudiced the defence of the

accused in a case involving offence punishable under Section 364-

A IPC which entails capital punishment. Thus, we are persuaded to

exercise suo motu powers under Section 391 CrPC so that the

injustice can be cured. Accordingly, it is hereby directed that the

record of the case shall be transmitted to the trial court who shall,

recall the material prosecution witnesses, PW.1 Pahalwan Singh,

PW.2 Master 'J', PW.16 Ranjeet Ram and PW. 17 Narendra Kumar

so that effect cross-examination can be conducted from them on

behalf of the accused Tersem Singh. The accused shall also be

summoned from the Jail. In case, he is unable to engage a lawyer

of his choice to defend himself, the trial court shall provide

services of a competent defence counsel of significant standing in

the Bar to the accused under the Free Legal Aid Scheme,

(5 of 5) [CRLAD-21/2018]

promoted by the Legal Services Authority. The entire exercise of

allowing cross-examination from these witnesses and re-

examination, if so required, shall be completed within two months

from today. Needless to say that the legal aid counsel shall be

provided complete record free of cost well in advance so that

effective cross-examination can be carried out from these

witnesses. The statements of these witnesses recorded after recall

shall be transmitted to this Court with the original record. The

appeals shall be listed for hearing on 12.01.2022.

(In D.B. Criminal Appeal Nos. 21/2018 & 45/2018)

List alongwith D.B. Criminal Appeal No.100/2018 on

12.01.2022.

                                   (SAMEER JAIN),J                                           (SANDEEP MEHTA),J
                                    6-Sudhir Asopa/-









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